New York law considers a will valid if it complies with:
- New York Law,
- Law Where executed, or
- Law of Decedent’s domicile at Death or when will executed.
What law governs the construction and application of admissible will’s provisions if the will was executed in accordance with the laws of another state?
Once the will is admitted to probate, New York law governs construction and application of its provisions.
Requirements of a valid will:
- Legal Capacity
- Testamentary Capacity — Sound Mind
- Testamentary Intent
- Formalities
Age of legal capacity to execute a will:
18 years
Elements of testamentary capacity:
- Understand the action (Must understand the business in which the testator is engaged, e.g., making a will.)
- Comprehend the effect of the action (Comprehend Effect of the Action)
- Know the general nature and extent of property (Must understand the general nature and extent of property; exact knowledge is not needed.)
- Recognize natural objects of bounty (Must know family situation and the claims against him, e.g., know who spouse and children are.)
- Understand the dispositions (Must be able to understand the gifts the testator is making in the will.)
May mentally challenged individuals execute a will?
Mentally challenged individuals can make a will as long as they meet the five elements of testamentary capacity.
What effect does adjudication of incapacity have on on’e ability to execute a will?
Adjudication of incapacity raises rebuttable presumption of lack of testamentary capacity.
A person adjudicated incompetent may be able to executed a will during a “lucid interval.”
What is necessary to prove testamentary intent?
Testator must intend the very instrument executed to be the will.
What formalities are required for a valid will?
- In writing
- Signed by the testator
- Testator or proxy subscribes
- In the presence of each witness, the testator must either (1) sign the will or (2) acknowledge a prior signature.
- Testator must publish the will
- Attestation (Witnessing)
- Execution ceremony must be completed within 30 days from when the first witness signs.
What is required of a signature?
A signature is any mark made with present intent to authenticate the will.
Proxy signatures allowed if:
(1) in the testator’s presence,
(2) by the testator’s direction,
(3) proxy signs the testator’s name,
(4) proxy is not a necessary attesting witness, and
(5) proxy writes proxy’s address (but failure to do so does not invalidate the will)
Where must the testator or proxy sign a will?
At the end, because any material after the signature is ineffective.
How is a will published?
The testator must communicate to the witnesses that they are witnessing a will (and not some other legal document).
How may witnesses are required?
Two
Must the witnesses sign in each other’s presence?
No
Must the witnesses sign in the testator’s presence?
No
What is the general rule for an interested witness?
Beneficiary’s gift is void but otherwise the will is valid.
When will an interested witness be exempt from the general rule?
- Supernumerary (extra) Witnesses to Will -
Beneficiary receives gift as provided in the will this person’s attestation is not needed to probate the will. - Beneficiary also an Heir
Beneficiary receives smaller of: (1) intestate share, and (2) gift under the will.
What is an attestation clause?
An attestation clause is not required but may act as prima facie evidence that all will formalities were satisfied. It does not substitute for the witnesses’ testimony at the time of probate.
What is a self-proving affidavit?
The testator and witnesses sign an affidavit swearing under oath in the presence of an attorney that the requirements for a valid will were satisfied.
What is the purpose/function of a self-proving affidavit?
In uncontested cases, the SPA removes the requirement that the witnesses come into court to testify and thus probate is faster and cheaper.
Who has the burden of proving the will?
The proponent of the will has the burden of proving that the testator duly executed the will.
How is dues execution shown if a will lacks a self-proving affidavit or it is contested, and both witnesses are available?
If both witnesses are available
Both witnesses must testify.
How is dues execution shown if a will lacks a self-proving affidavit or it is contested, and one witness is not available to testify?
The testimony of one witness suffices if the other witness is dead, absent from the state, incompetent, or cannot with due diligence be found.
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1. Intestacy35
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2. Will Validity31
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3. Changes to Property Between Will Execution and Testator's Death23
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4. Changes to People Between Will Execution and Testator's Death20
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5. Interpretation and Construction20
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6. Revocation and Related Issues10
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7. Will Contests20
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8. Non-Probate Assets4
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9. Elective Share of Surviving Spouse15
